In accord with section 6 of the Care of Children Act 2004 a child’s views can be taken in account in cases involving the guardianship, contact and day to day care of the child, or cases about property and/or income belonging to or held in trust for the child.

The most common situation where a child’s views are considered is where there is a dispute about the day to day life of that child. This can include where the child lives, who the child lives with, what school they attend, and whether or how often they have contact with a parent or other family member.

In such situations it is mandatory that a child is given “reasonable opportunity” to express their view on matters.

If a child expresses any views then these “must be taken into account”.

How children’s views are ascertained

In many cases where there are disputes regarding the care and guardianship of a child the Family Court will appoint a lawyer for the child.

This is an independent lawyer who has the role of communicating with the child and reporting back to the Court.

In this role the lawyer for the child may meet with the child (if the child is old enough) to discuss the dispute and ascertain the child’s thoughts and feelings about the situation.

The lawyer for the child will report the child’s views back to the Court and may make recommendations.

How children’s views are ‘taken into account’

The Courts have determined that the expression, “taken into account” does not go so far as to oblige the Court to act in accord with any view expressed by a child. This is because the overreaching principle of the Care of Children Act 2004 is that a child’s welfare and interests is the first and paramount consideration.

The Court will give such weight to the child’s views as it considers appropriate in the circumstances of the case.

The recent case of Jackeman v Royce [2016] NZFC 4755 dealt with an 11 year old child who initially was enjoying contact with his father but later expressed the view that he did not want any direct contact.

The circumstances of the case were that the father had entered a new relationship resulting in a blended family, prior to that the child had been an only child in both households. In addition the relationship between the father and mother of the child had broken down due to the mother filing care of children proceedings.

In ascertaining the child’s views the lawyer for the child commented that the child was mature, confident and composed, and recommended that the child’s views were given significant weight because of his age, maturity, the strength and consistency of his views over 18 months, and the cogency of the reasons he has for not wanting contact.

The Court identified that the change in the child’s views likely came about as the result of two factors. The first being the child’s difficulty in dealing with the new blended family scenario and his father’s expectations of him, and the second being the child’s awareness of the deterioration of the relationship between his parents.

It was acknowledged that if there was no contact it would be difficult for the relationship between the child and his father to be preserved and strengthened.

However, the Court considered that the child’s emotional and psychological safety would be put at serious risk if contact was directed against his wishes and that the child was likely to feel extremely upset, anxious and that his views had not been listened to. The Court felt that this could have consequences for his physical health and be detrimental to his progress at school.

The Court declined to order direct contact between the child and his father.

Conclusion

This case demonstrates the serious consideration the Court will give to a child’s views where those views are strongly expressed and justified by the child there is a risk to the emotional and psychological safety of the child if those views are not followed.

September 4, 2018

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